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EEOC sharing employers’ position statements with charging parties

by Leslie Silverman

Employers should be aware that the position statements they submit to the Equal Employment Opportunity Commission (EEOC) are now far more likely to end up in the hands of the employees who filed those charges and their attorneys. The agency has instructed all of its 53 field offices to release respondents’ position statements and nonconfidential attachments to a charging party or her representative upon request. The new nationwide procedure applies to all position statements requested by the EEOC on or after January 1, 2016.

Expanding old authority
While the EEOC’s field offices have had the authority to share position statements with charging parties for more than two decades, only four offices routinely exercised that authority. It is believed that most EEOC field offices have been reluctant to provide position statements to charging parties because of privacy concerns or fear that sharing the information could potentially exacerbate or prolong the investigation.

Despite the field offices’ apprehension, the agency determined that the new procedures would enhance consistency and strengthen investigations. Although the change in procedure has been implemented agencywide, when a field office determines that releasing a position statement would impede its investigation, it has the discretion to delay the release or decide not to release the information altogether.

Help in protecting confidential info
In a newly released resource guide on “Effective Position Statements” (available at www.eeoc.gov/employers/position_statements.cfm), the EEOC instructs employers on how to protect the confidential medical and business information they are relying on in their response to a charge of discrimination. According to the EEOC, employers should refer to but not identify confidential information in their position statement. Instead, they should provide information they do not want disclosed to a charging party in one of three separately labeled attachments—”Sensitive Medical Information,” “Confidential Commercial or Financial Information,” or “Trade Secret Information”—along with an explanation justifying the confidential nature of the information.

The EEOC plans to review the designated attachments, and if it does not agree with the employer’s assessment, it will release the information to the charging party. The agency has included a list of the types of information it considers confidential in its resource guide and has made it clear that it will not accept “blanket or unsupported assertions of confidentiality.”

The EEOC implemented this new procedure in conjunction with the rollout of its new digital charge processing system. On January 1, all EEOC field offices began using the agency’s respondents portal to communicate and exchange documentation with employers during an investigation.

Employers that provide position statements to the EEOC should be aware of these changes and segregate confidential information accordingly.

Leslie Silverman is an attorney with Fortney & Scott, LLC, in Washington, D.C. You can reach her at lsilverman@fortneyscott.com.